A new Delaware law requiring crisis pregnancy centers to disclose their unlicensed medical status is facing a federal lawsuit.
Former State Senator now Lt. Gov. Kyle Evans Gay sponsored the legislation — which passed last year with only Democratic support — requiring these centers, which are largely established by anti-abortion groups, to post signage at the entrance and inside the facility alerting patients it does not employ licensed medical providers.
The law is similar to one passed in California in 2015 — known as the Freedom, Accountability, Comprehensive Care, and Transparency (FACT) Act — that was ultimately struck down by the U.S. Supreme Court in 2018 due to its likely violation of the First Amendment.
Writing for the majority, Justice Clarence Thomas said the law "targets speakers, not speech, and imposes an unduly burdensome disclosure requirement that will chill their protected speech."
The 5-4 NIFLA v. Becerra decision overturned an earlier decision by the Ninth Circuit upholding the law and sent the case back for further consideration.
But Gay says Delaware’s version has some important distinctions from the California law.
“The Delaware law does not compel speech by an individual when they are speaking to a patient. It simply requires public signage so that individuals seeking care understand what type of care they can receive at a medical facility versus not," she explained.
Gay is referring to California’s requirement that digital or printed handouts be given to patients alerting them that the state provides free or low-cost family planning services and abortions — something the Delaware law does not do.
The First State's version requires a limited services medical facility to disseminate to a client on site and in print or digital advertising materials a notice that states “This facility is not licensed as a medical facility by the state of Delaware and has no licensed medical provider who provides or directly supervises the provision of services.”
The on-site notice must be a sign at least 11 inches by 17 inches and be posted conspicuously at the entrance of the facility and in at least one additional area where clients wait to receive services.
American conservative Christian legal advocacy group Alliance Defending Freedom (ADF) is challenging the law in the U.S. District Court for Delaware, arguing Gay's version similarly unconstitutionally restricts crisis pregnancy centers’ ability to "communicate freely" and "forces them to speak messages that undermine their mission and mislead the public."
“Since Roe v. Wade was overturned, state attorneys general have ramped up their efforts to silence, censor, and shut down pregnancy care centers across the country. Delaware now follows government officials in New Jersey, New York, Washington, California, and Vermont targeting these centers by forcing them to provide misleading information or by punishing them for their life-affirming viewpoints,” said ADF Senior Counsel Kevin Theriot in a statement. “Delaware’s law runs afoul of the U.S. Supreme Court decision in NIFLA v. Becerra that struck down compelled statements in advertising. We are urging the court to follow the Supreme Court’s guidance and respect pregnancy centers’ freedom to continue their life-saving work to women and families.”
But Gay argues the bill is an effort to help resolve the state's maternal health crisis by improving access to care for those who are pregnant.
"If we want to make sure that prenatal care is not delayed, that individuals have information about what they need to do to take care of themselves, then we simply need to make sure that they are not confused about whether or not they are receiving adequate healthcare at a facility that is not licensed as a medical facility," she said.
The law is not set to take effect until March.
The case will be handled by Attorney General Kathy Jennings who has not yet filed a response.
